Guardianships: Collaboration Needed to Protect Incapacitated
Elderly People (13-JUL-04, GAO-04-655).
As people age, some become incapable of managing their personal
and financial affairs. To protect these people, state laws
provide for court appointment of guardians to act on their
behalf. In many cases federal programs provide these
incapacitated people financial benefits. GAO was asked to
examine: (1) what state courts do to ensure that guardians
fulfill their responsibilities, (2) what guardianship programs
recognized as exemplary do to ensure that guardians fulfill their
responsibilities, and (3) how state courts and federal agencies
work together to protect incapacitated elderly people.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-04-655
ACCNO: A10812
TITLE: Guardianships: Collaboration Needed to Protect
Incapacitated Elderly People
DATE: 07/13/2004
SUBJECT: Aid for the disabled
Elderly persons
Guardians
Federal/state relations
Courts (law)
Decision making
Jurisdictional authority
Surveys
******************************************************************
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GAO-04-655
United States Government Accountability Office
GAO Report to the Chairman, Special Committee on Aging, U.S. Senate
July 2004
GUARDIANSHIPS
Collaboration Needed to Protect Incapacitated Elderly People
Correction made on 7/22/04 to p. 4, line 13, revised to read "Few courts provide
a basis for estimating how many incapacitated elderly people have guardians".
a
GAO-04-655
Highlights of GAO-04-655, a report to the Chairman, Special Committee on
Aging, U.S. Senate
As people age, some become incapable of managing their personal and
financial affairs. To protect these people, state laws provide for court
appointment of guardians to act on their behalf. In many cases federal
programs provide these incapacitated people financial benefits. GAO was
asked to examine: (1) what state courts do to ensure that guardians
fulfill their responsibilities, (2) what guardianship programs recognized
as exemplary do to ensure that guardians fulfill their responsibilities,
and (3) how state courts and federal agencies work together to protect
incapacitated elderly people.
GAO recommends that (1) the Social Security Administration lead an
interagency/state court group to study options for prompt and systematic
information sharing for the protection of incapacitated elderly people and
that (2) the Department of Health and Human Services provide support to
states and national organizations involved in guardianship programs in
efforts to compile national data on the incidence of abuse with and
without the assignment of a guardian or representative payee and to review
state policies for interstate transfer and recognition of guardianship
appointments. HHS, Office of Personnel Management (OPM), and VA agreed
with the recommendations. SSA disagreed, citing privacy issues.
www.gao.gov/cgi-bin/getrpt?GAO-04-655.
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Barbara Bovbjerg at (202)
512-7215 or [email protected].
July 2004
GUARDIANSHIPS
Collaboration Needed to Protect Incapacitated Elderly People
All states have laws requiring courts to oversee guardianships, but court
implementation varies. Most require guardians to submit periodic reports,
but do not specify court review of these reports. Interstate
jurisdictional issues sometimes arise when states do not recognize
guardianships originating in other states. Most courts responding to our
survey did not track the number of active guardianships, and few indicated
the number of incapacitated elderly people under guardianship.
Four courts recognized by members of the National Guardianship Network as
having exemplary guardianship programs devote staff to strong programs for
guardianship training and oversight. Three of these courts offer training
to guardians even though state law does not require it. Three also have
programs in which volunteers or social work student interns visit people
under guardianship and report on their condition.
Although state courts and federal agencies are responsible for protecting
many of the same incapacitated elderly people, they generally work
together only on a case-by-case basis. Some courts send notices of
guardianship to the Department of Veterans Affairs and the Social Security
Administration, but generally coordination among federal agencies and
courts is not systematic. Federal agencies and courts do not
systematically notify other agencies or courts when they identify someone
as incapacitated, or when they discover that a guardian or a
representative payee is abusing the incapacitated person. This lack of
coordination may leave incapacitated people without the protection of
responsible guardians and representative payees.
Courts and Federal Agencies Have Responsibilities for Protecting
Incapacitated Elderly People
Source: SSA, VA, and OPM data and GAO analysis.
Contents
Letter 1
Results in Brief 2
Background 4
State Laws Provide for Court Oversight of Guardianships, but
Court Procedures Vary 9
Courts Recognized as Exemplary Focus on Training and
Monitoring 16
State Courts and Federal Representative Payee Programs Serve
Many of the Same Incapacitated Elderly People, but Collaborate
Little in Oversight Efforts 22
Conclusions 30
Recommendations 31
Agency Comments 33
Appendix I Scope and Methodology
Appendix II GAO Surveys of Courts in California, Florida, and New York
Appendix III Results from GAO Surveys of Courts in California, Florida,
and New York
Appendix IV Comments from the Office of Personnel Management 82
Appendix V Comments from the Department of Veterans Affairs 83
Appendix VI Comments from the Department of Health and
Human Services 84
Appendix VII Comments from the Social Security Administration 88
Appendix VIII GAO Contacts and Staff Acknowledgments 91
GAO Contacts 91 Staff Acknowledgments 91
Tables
Table 1: Characteristics of Selected Federal Representative Payee Programs
Table 2: Few Surveyed Courts Tracked the Number of Elderly People with
Guardians the Courts Oversee
Table 3: Characteristics of Courts Recognized as Exemplary
Table 4: Training and Information Resources for Guardians in the Four
Courts
Table 5: Oversight Procedures in the Four Courts
Table 6: Many Elderly People Receive Benefits from More than One Federal
Agency
Table 7: Representative Payee Programs' Gathering and Exchange of
Information
7
15 17
18 21
23
26
Figures
Figure 1: Courts and Federal Agencies Have Responsibilities for Protecting
Incapacitated Elderly People 6 Figure 2: How Often Guardians' Accounting
Reports Must Be Submitted Varies by State 11
Figure 3: Federal Agencies and the Courts May or May Not Assign
Representative Payee and Guardianship Responsibilities to the Same
Individual 27
Abbreviations
HHS Department of Health and Human Services
OPM Office of Personnel Management
SSA Social Security Administration
VA Department of Veterans Affairs
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protection in the United States. It may be reproduced and distributed in
its entirety without further permission from GAO. However, because this
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separately.
United States General Accounting Office Washington, DC 20548
July 13, 2004
The Honorable Larry E. Craig Chairman Special Committee on Aging United
States Senate
Dear Mr. Chairman:
As people age, some of them become incapable of caring for themselves and
must rely on a guardian-a person or entity appointed to make decisions for
them. In the United States, the number of people requiring a guardian is
expected to increase considerably in the years ahead. The number of
elderly people (those aged 65 and older) is expected to increase
substantially over the next several decades, and the number of people aged
85 and older is expected to triple by 2040 to 15 million. The Census
Bureau estimates that about one-quarter of the people in this older age
group has Alzheimer's disease, which may lead to dementia that is severe
enough that people become incapable of caring for themselves.1 Generally,
adults are identified as incapacitated when they become physically or
mentally incapable of making or communicating important decisions, such as
those required in handling finances or securing possessions. In many
cases, incapacitated adults are elderly, but in many other cases they are
not, and generally the same laws and procedures apply to all incapacitated
adults. Often, family members can provide assistance, but sometimes a
state or local court needs to appoint a guardian to act on behalf of the
incapacitated person.2 The guardian becomes responsible for making
decisions to protect the incapacitated person from financial and physical
abuse or neglect, and the incapacitated person loses decision-making
rights.
Although guardianship is a state responsibility, there are many
incapacitated elderly people who receive federal benefits, and this group
1Alzheimer's disease is only one of the health conditions leading to
dementia or other incapacity.
2For convenience, we use the term "guardian" though some states use other
terms. California, for example, uses the term "conservator" when the
incapacitated person is an adult.
of people may need federal agencies to identify a representative payee-a
person or organization designated to handle those benefits on their
behalf. State and local courts are responsible for oversight of
guardianship appointments, and federal agencies are responsible for
oversight of representative payees. Courts and federal agencies have
identified instances in which guardians or representative payees have
taken advantage of incapacitated elderly people by, for example, stealing
from them or billing for services not provided. Such cases of abuse and
neglect of elders by guardians and representative payees have prompted
questions about the oversight of these programs.
As part of your committee's focus on aging issues, you asked us to study
guardianships for the elderly and the representative payee programs of
federal agencies such as the Social Security Administration (SSA), the
Department of Veterans Affairs (VA), and the Office of Personnel
Management (OPM), which manages retirement programs for federal employees.
In response to your request, we examined: (1) what state courts do to
ensure that guardians fulfill their responsibilities, (2) what exemplary
guardianship programs do to ensure that guardians fulfill their
responsibilities, and (3) how state courts and federal agencies work
together to protect incapacitated elderly people. To study these topics,
we reviewed state statutes and conducted surveys of courts responsible for
guardianships in the three states with the largest elderly populations-
California, Florida, and New York. Forty-two of 58 courts in California,
55 of 67 courts in Florida, and 9 of 12 judicial districts in New York
responded to our surveys. We also visited courts in eight states and
interviewed officials responsible for representative payee programs at
SSA, VA, and OPM and officials at the Department of Health and Human
Service's Administration on Aging. In addition, we visited 4 courts
identified by members of the National Guardianship Network (a joint
council representing eight national organizations involved in guardianship
issues) as having exemplary guardianship programs. We conducted our work
between March 2003 and May 2004 in accordance with generally accepted
government auditing standards. (For details concerning our scope and
methodology, see app. I.)
Results in BriefAll states have laws requiring courts to oversee
guardianships, but court implementation of these laws varies. At a
minimum, most states' laws require guardians of the person to submit a
periodic report to the court regarding the well being of the incapacitated
person and guardians of the estate to provide an accounting of the
incapacitated person's finances. Many states' statutes also authorize
measures that courts can use to
enforce guardianship responsibilities, such as termination of the
guardianship appointment or imposition of fines for failure to fulfill
guardianship responsibilities. Often states do not recognize guardianships
originating in other states, which can raise jurisdictional issues. In
addition to variations among states' laws, courts we studied have quite
varied procedures for implementing guardianship requirements in state law.
For example, most California and Florida courts responding to our survey
require guardians to submit time and expense records to support petitions
for compensation, but both states also have courts that do not require
these reports. Some courts also take steps beyond what is required by
state statutes. For example, some courts require that guardians receive
more training than the minimum required by law. Although information, such
as the number of people with guardians, is needed for effective oversight
of guardianships, it is neither required, nor generally available from the
courts. One-third or fewer of the responding courts tracked the number of
active guardianships for incapacitated adults and only a few in each state
provided the number of those who were elderly.
Judges for four courts widely recognized as having exemplary guardianship
programs devote staff to the management of guardianships, allowing the
courts to specialize and develop programs for guardianship training and
oversight. For example, the court we visited in Florida provided
comprehensive reference materials for guardians to supplement training.
The other three courts offered training to guardians even though state law
does not require it. Three of the exemplary courts have programs in which
volunteers or student interns visit people under guardianship and report
on their condition to the court. For example, the court in New Hampshire
recruits volunteers, primarily retired senior citizens, to visit
incapacitated people, their guardians, and care providers at least
annually, and submit a report of their findings to court officials.
Exemplary courts in Florida and California also have permanent staff to
investigate allegations of fraud, abuse, or exploitation or cases in which
guardians have failed to submit required reports.
Although state courts and federal agencies are responsible for protecting
many of the same incapacitated elderly people, they generally work
together only on a case-by-case basis. For example, some courts may send
notice of guardianship appointments to SSA, allowing the federal agency to
determine whether the court-appointed guardian could also act as a
representative payee. Federal agencies may also provide information about
incapacitated beneficiaries to courts to help assess the incapacitated
person's income and whether the guardian needs to coordinate with a payee.
However, coordination between federal agencies
and state and local courts does not take place systematically, nor do
federal agencies systematically share information with one another. For
example, if VA does not notify SSA when it identifies someone as
incapacitated, SSA may not learn that one of its beneficiaries may need a
representative payee. Similarly, courts identifying a guardian who has
abused or neglected an incapacitated person do not automatically notify
the federal agency that assigned the guardian as a representative payee.
Thus, an incapacitated person may remain at risk of having an identified
abuser in charge of his or her benefit payments. The extent to which this
is a problem is unknown, because current efforts to compile statistical
data by Adult Protective Service agencies and the Justice Department's
Bureau of Justice Statistics do not identify cases of elder abuse
involving guardians or representative payees. Few courts provide a basis
for estimating how many incapacitated elderly people have guardians.
Without such data, the extent to which improvements in guardian and
representative payee oversight are needed remains unknown.
We are making recommendations to the Social Security Administration,
Office of Personnel Management, the Department of Health and Human
Services (HHS), and the Department of Veterans Affairs concerning
interagency and state and federal collaboration in efforts to plan and
implement cost-effective measures to systematically compile and share
information needed to enhance the protection of incapacitated elderly
people. We provided a draft of this report to each of these agencies and
received written comments on the draft from all four. See appendixes IV,
V, VI, and VII for their comments. VA, OPM, and HHS agreed with our
conclusions and indicated their willingness to participate in the study
group and other efforts we are recommending. SSA disagreed with our
recommendations concerning an interagency study group, citing differences
in federal agency and state court policies regarding protection of the
incapacitated, the difficulties that would be involved, and requirements
of the Privacy Act that it believes would preclude the kind of information
sharing we recommend that SSA and the other agencies study.
Background The number of people age 65 and older will nearly double by the
year 2030 to 71 million. An estimated 6 percent of people aged 65 or older
have Alzheimer's disease, a degenerative condition that may lead to
dementia.3
3Other causes of dementia include strokes, brain tumors, and a variety of
endocrine, metabolic, and nutritional disorders.
Over time, some elderly adults may become physically or mentally incapable
of making or communicating important decisions, such as those required to
handle finances or secure their possessions. In addition, while some
incapacitated adults may have family members who can assume responsibility
for their decision-making, many elderly incapacitated people do not. The
Census Bureau predicts that in the future the elderly population will be
more likely to live alone and less likely to have family caregivers. In
situations such as these, additional measures may be necessary to ensure
that incapacitated people are protected from abuse and neglect.
Several arrangements can be made to protect the elderly or others who may
become incapacitated. A person may prepare a living will, write advance
health care directives, and appoint someone to assume durable power of
attorney, or establish a trust. However, such arrangements may not provide
sufficient protection. Some federal agencies do not recognize durable
powers of attorney for managing federal benefits. SSA, for example, will
assign a representative payee for an incapacitated person if it concludes
that the interest of the incapacitated beneficiary would be served,
whether or not the person has granted someone else power of attorney.4 In
addition, many states have surrogacy healthcare decisionmaking laws, but
these alternatives do not cover all cases. Additional measures may be
needed to designate legal authority for someone to make decisions on the
incapacitated person's behalf.
To provide further protection for both elderly and non-elderly
incapacitated adults, state and local courts appoint guardians to oversee
their personal welfare, their financial well being, or both.5 The
appointment of a guardian typically means that the person loses basic
rights, such as the right to vote, sign contracts, buy or sell real
estate, marry or divorce, or make decisions about medical procedures. If
an incapacitated person becomes capable again, by recovering from a
stroke,
4For convenience, we use the term "incapacitated," recognizing that
federal agencies and states use a variety of terms and somewhat different
definitions to assess whether someone is in need of a guardian or
representative payee. SSA, for example, assigns representative payees to
people it has determined are incapable of managing or directing the
management of benefit payments. OPM and VA use the term "incompetent" but
have somewhat different definitions. Most states use the term
"incapacitated," but others use "incompetent," "mental incompetent,"
"disabled," or "mentally disabled."
5Generally states also have separate provisions for guardianship of minor
children, including those who are incapacitated and those who are not.
for example, he or she cannot dismiss the guardian but, rather, must go
back to court and petition to have the guardianship terminated.
The federal government does not regulate or provide any direct support for
guardianships, but courts may decide that the appointment of a guardian is
not necessary if a representative payee has already been assigned to an
incapacitated person by a federal agency. Representative payees are
entirely independent of court supervision unless they also serve their
beneficiary as a court-appointed guardian. Guardians are supervised by
state and local courts and may be removed for failing to fulfill their
responsibilities. Representative payees are supervised by federal
agencies, although each federal agency with representative payees has
different forms and procedures for monitoring them.
Each state provides a process for initiating and evaluating petitions for
guardianship appointment. Generally, state laws require that a petition be
filed with the court and notice be provided to the alleged incapacitated
person and other people with a connection to the person. In nearly all
states, the alleged incapacitated person is granted the right to be
present at the hearing, and the right to counsel. Most states require
clear and convincing evidence of a person's incapacity before a guardian
can be appointed. The court may appoint a family member, friend, attorney,
a paid private professional, a nonprofit social service agency, or a local
public agency to serve as the guardian.
Figure 1: Courts and Federal Agencies Have Responsibilities for Protecting
Incapacitated Elderly People
Source: SSA, VA, OPM data, and GAO analysis.
In many cases, both courts and federal agencies have responsibilities for
protecting incapacitated elderly people, as shown in figure 1. For federal
agencies, a state court determination that someone is incapacitated or
reports from physicians often provide evidence of a beneficiary's
incapacity, but agency procedures also allow statements from lay people to
serve as a sufficient basis for determining that a beneficiary needs
someone to handle benefit payments on their behalf-a representative payee.
SSA, OPM, and VA ask whether the alleged incapacitated person has been
appointed a guardian and often appoint that person or organization as the
representative payee. In some cases, however, the agencies choose to
select someone other than the court-appointed guardian. Social Security
officials sometimes designate the nursing home where the incapacitated
person resides as the representative payee because it provides for direct
payment to the nursing home, ensuring continuity of care for the
incapacitated person.6
Table 1: Characteristics of Selected Federal Representative Payee Programs
Characteristics SSA OPM VA
Benefit programs with Old Age and Civil Service VA
representative payees Survivors, Retirement Compensation,
Disability System, Federal VA Pension,
Insurance, and Employee and other VA
Supplemental Retirement programs
Security Income System providing cash
benefits
Beneficiaries age 65 and older 717,623a 5,161b 46,449c with representative
payee
Beneficiaries of all ages with 6,863,785a 11,157b 100,239c representative
payee
Estimated benefits paid in fiscal $43 billiond $115 million $1 billion
year 2003 to all beneficiaries with
representative payees
Source: SSA, OPM, and VA data.
aAs of December 2003.
bAs of November 2002.
cAs of September 30, 2003.
dAnnualized estimate based on data for December 2002.
6In cases where a Medicaid-eligible nursing home resident has insufficient
SSA benefits to cover the entire cost of the nursing care; however, the
law provides that the resident shall nonetheless be provided a personal
needs allowance of at least $30 each month.
In many cases, guardians are appointed with a full range of
responsibilities for making decisions about the incapacitated person's
health and wellbeing as well as their finances, but several states' laws
require the court to limit the powers granted to the guardian, if
possible. The court may appoint a "guardian of the estate" to make
decisions regarding the incapacitated person's finances or a "guardian of
the person" to make nonfinancial decisions. An incapacitated person with
little income other than benefits from SSA for example, might not need a
"guardian of the estate" if he or she already has a representative payee
designated by SSA to act on their behalf in managing benefit payments.
Sometimes the guardian is paid for their services from the assets or
income of the incapacitated person, or from public sources if the
incapacitated person is unable to pay. In some cases, the representative
payee is paid from the incapacitated person's benefit payments.
Guardians and representative payees may have conflicts of interest that
pose risks to incapacitated people. While many people appointed as
guardians or representative payees serve compassionately, often without
any compensation, some will act in their own interest rather than in the
interest of the incapacitated person. Oversight of both guardians and
representative payees is intended to prevent abuse by the people
designated to protect the incapacitated people.
While the incidence of elder abuse involving persons assigned a guardian
or representative payee is unknown, certain cases have received widespread
attention. The following are examples of abuse by guardians and
representative payees provided by courts and federal agencies:
o A guardian and an employee of the guardian's law firm brought a nursing
home resident in New York a cake and flowers on her birthday and billed
her $850 for the visit using hourly rates for legal services.
o Rather than using electronic direct deposit, a guardian in New York
City appointed to protect an incapacitated person regularly traveled to
their branch bank in another borough to deposit her monthly $50 Social
Security check, charging her $300 per deposit.
o A company in Michigan acting as guardian for more than 600
incapacitated people committed felonies against them, including selling
one individual's home to a relative of a company employee for $500.
o A woman in the position of Public Fiduciary at the Gila County Public
Fiduciary's Office in Arizona served as guardian of incapacitated
people and in that capacity embezzled and misused a total of at least $1.2
million of public funds. The county's investigation concluded that "the
Court's lack of oversight contributed to the enormous loss of public
monies."
o A woman in Washington State established a nonprofit service
organization that SSA designated as the representative payee for about 200
beneficiaries. One of her clients was a homeless man entitled to
retroactive payment of benefits totaling about $15,000. She received the
payment on his behalf, but used the money as her own, along with SSA
benefits for others. She embezzled a total of approximately $107,000 of
SSA benefits.
o A guardian and representative payee for veterans pled guilty to four
counts of misappropriation after a joint VA and SSA Office of Inspector
General investigation substantiated allegations that he had embezzled over
$400,000 from the veterans' estates.
o The head of a foundation in West Virginia serving as a representative
payee for 140 people (including veterans and elderly people) embezzled
over $300,000 from them over a 4-year period, consisting mostly of Social
Security benefits.
All 50 states and the District of Columbia have statutes providing for
state or local court oversight of guardianship appointments, but court
procedures for implementing these laws vary considerably. Generally,
guardians submit periodic reports to the court, but courts' procedures for
reviewing reports vary, as do procedures for monitoring guardianships and
the penalties courts impose when guardians do not perform their duties.
Jurisdictional issues, such as courts in 2 states being asked to appoint a
guardian for the same incapacitated person, sometimes complicate
guardianship appointments. In addition, most state courts surveyed do not
maintain information needed for effective monitoring and oversight of
guardianships.
State Laws Provide for Court Oversight of Guardianships, but Court Procedures
Vary
State Laws Require Courts State laws provide for court appointment and
oversight of guardianships. to Oversee Guardianships, Nearly all states
require two kinds of reports: one regarding the personal but
Jurisdictional Issues status and well being of the incapacitated person
and another regarding
the accounting of the person's finances. The personal status reports
Complicate Oversight usually include information regarding the condition
of the incapacitated person, although many states require more specific
information regarding various aspects of the incapacitated person's
status. In many states, the
laws require the report to include documentation of the need for continued
guardianship. Many statutory requirements are very detailed and require a
physician's statement, a determination of the mental status of the
incapacitated person, or in some instances, reports of any change in the
condition of the incapacitated person. Other basic report elements may
include living conditions, place of residence, and the number of guardian
visits. Some states may allow courts to waive certain reporting
requirements.
Most states require that guardians submit a financial accounting and
record of expenditures for the care of the incapacitated person on an
annual basis. This document may list the assets and income of the
incapacitated person, including bank balances, real property holdings, and
detailed expenses associated with the care and housing of the
incapacitated person. State statutes usually require court approval for
the sale of real estate by a guardian.
How often guardians are required to submit reports varies. Most states
require guardians to submit personal status reports at least annually.
Only the District of Columbia's law requires submission at least
semiannually. Statutory requirements for filing financial accountings
range from annually to at least once every 3 years. (See fig. 2.) In
states where accounting frequency requirements are left to the discretion
of the courts, the minimum requirement is that an accounting be made upon
resignation or removal of the guardian. In many states, there is an
explicit requirement that court personnel take action when reports are not
filed on time. In Texas, if a guardian of the person fails to file a
report or a guardian of the estate fails to file an annual accounting, the
guardianship appointment expires.
Apart from requirements for review of the submitted reports, some states'
statutes require a periodic review of the guardianships to ensure that
guardians are adequately fulfilling their responsibilities and there is a
continuing need for the guardianship. In some states, an investigator will
visit the incapacitated person to determine whether there is a continuing
need for a guardianship or if the current guardian should be terminated
and a new one appointed. For example, Alaska requires courts to evaluate
incapacitated persons every 3 years. Some states hold a hearing to assess
the continuing need for a guardianship. For example, Connecticut law
requires a hearing every 3 years to determine if any changes need to be
made to the guardianship appointment.
Many states' laws authorize penalties that courts can impose to enforce
guardianship responsibilities. These most frequently include termination
of the guardianship appointment or imposition of fines for failure to
fulfill responsibilities. Some states have statutes providing for the
denial of guardianship fees while others authorize penalties against
negligent or ineffective guardians, including charging the guardian with
contempt of court, imprisonment, restitution for mismanagement of
property, recovery of assets and surcharges, or loss of bond. Many other
state statutes allow hearings at the court's discretion or in response to
a petition.
Some states are reluctant to recognize guardianships originating in other
states, leading to jurisdictional complications. The 1998 Uniform
Guardianship and Protective Procedures Act has been adopted into many
states' statutes. This act gives courts the power to exercise jurisdiction
when an incapacitated person is moved or travels from one state to
another. However, these provisions may not sufficiently address all
complications that arise in guardianships for the elderly such as when
more than one jurisdiction is asked to appoint a guardian for the same
incapacitated person. For example, a guardian appointed in one state that
attempts to sell an incapacitated person's real property located in
another state may need to travel to that state and petition a court there
in order to establish authority to act on behalf of the incapacitated
person. Interstate jurisdictional issues also arise when the guardian or
the incapacitated person needs to move to another state. Issues may also
occur in cases involving the physical removal of an incapacitated person
from one jurisdiction to another in an effort to gain control over the
incapacitated person.
Courts' Procedures for Implementing State Laws Vary
While some state statutes specify minimal requirements for overseeing
guardians, individual courts may set their own, sometimes more stringent,
requirements and standards. The courts in the 3 states we surveyed
(California, Florida, and New York) implemented their state laws through
reporting and oversight procedures. (See app. III for a state-by-state
compilation of survey results.)
Within the 3 states, court procedures varied for the submission and review
of reports guardians are required to submit. Most courts responding to our
survey require an initial inventory of assets, income, and liabilities,
and courts in Florida and New York typically require annual financial
statements or accountings. Most courts in Florida and New York require
some or all guardians to submit a financial plan detailing how the
guardian will manage the financial affairs of the incapacitated person.
Most of the responding courts in California and Florida and all of the
responding judicial districts in New York indicated they require some or
all guardians to petition or inform the court if plans for the
incapacitated person's care change. Nearly all of the courts responding to
our survey in each state indicated that judges, court personnel, or court
examiners review guardians' reports, and a few courts use volunteers.
In each state surveyed, when guardians receive pay for services, the pay
varies. We asked courts about compensation approved in the last 12 months
before responding to our survey. Most courts indicated that some guardian
compensation was based on an hourly rate. In New York, rates typically
ranged from $25 to $400 per hour, in California they ranged from $7 to
$250 per hour, and in Florida they ranged from $8 to $85 per hour.8 In
other cases, guardians' compensation was based on the value of an elderly
incapacitated person's estate but, while most judicial districts in New
York had allowed this, few courts in Florida and about one-quarter of the
courts in California had. In each state, most courts responding to our
survey required all guardians to submit time and expense records to
support petitions for compensation, but other courts in each state only
require these reports for some guardians.
In all 3 states, responding courts reported a variety of measures for
guardianship oversight. Most California courts indicated that court
8The New York State Unified Court System's Commission on Fiduciary
Appointments and a Special Inspector General have raised concerns about
the selection and compensation of guardians and other fiduciaries in New
York, and the court has established the Office of Guardian and Fiduciary
Services to help administer a new appointment system.
personnel visit all or almost all the incapacitated people, and several
responding Florida courts and two New York judicial districts indicated
they had court personnel visit some or most of the incapacitated people.
Most responding courts reported that they ask questions raised by
guardians' reports, send follow-up letters to conservators, or send
notices or orders to appear in court when reports are late, incomplete, or
inaccurate.
Most responding courts in each state indicated they had imposed some kinds
of penalties when guardians failed to fulfill their responsibilities. The
most commonly used measures included withholding or reducing guardianship
compensation, terminating guardianship appointments, and contempt of court
citations. Several courts indicated they had done one or more of these
things more than 10 times during the past 3 years. A 1999 California State
law established a statewide registry of private professional guardians and
requires courts to notify the registry when a complaint against a guardian
is valid. Only one court indicated it had yet notified the registry of a
guardian's resignation or removal for cause.9 Eleven responding courts in
California and 9 in Florida indicated they had convicted guardians of a
crime against the incapacitated person. In New York, 2 judicial districts
had notified the state registry of a guardian's resignation or removal for
cause and 1 had convicted a guardian of a crime against an incapacitated
person.
Most Courts Surveyed Do Not Track the Number of Active Guardianships
In each state surveyed, some information needed for effective oversight of
guardianships, such as the number of people with guardians, was generally
not available. In each of the 3 states, one-third or fewer of the
responding courts tracked the number of all guardianships for adults that
they were responsible for monitoring, and only a couple of courts in each
state provided us with the number of these guardianships that were for
incapacitated people aged 65 and older. (See table 2.) California courts
report the number of probate and guardianship filings they handle each
year, including guardianships, probate of decedents' estates, and trusts-
for a total of 50,786 filings in fiscal years 2001-2002. The state court
administration does not, however, require a separate count of guardianship
filings for adults or the elderly.
9Staff in the California Attorney General's office responsible for the
registry indicated that as of April 2003 the registry consisted of 463
guardians, and in only one instance since the registry's establishment has
a court-submitted notice of a complaint.
Table 2: Few Surveyed Courts Tracked the Number of Elderly People with
Guardians the Courts Oversee
Number of courtsa Number of
judicial districts
California Florida in New York
Provided number of people aged 65 and
b
older with guardians 2 2
Provided the number of people with
guardians, but not number of those aged 65
and older 8 9
Provided neither 32 44
Did not respond to survey 16 12
Total number of courts and New York
State judicial districts 58 67
Source: GAO surveys of courts in California, Florida, and judicial
districts in New York.
aGAO sent surveys to California superior courts in each California county
and to Florida circuit courts in each Florida county. GAO sent similar
surveys to each New York State judicial district. The population of people
65 years of age or older was about 3.7 million in California, 2.8 million
in Florida, and 2.4 million in New York as of July 2001.
bIncludes one California court that indicated it had no elderly people
with a guardian, but did not provide the number of all people (elderly and
non-elderly) with guardians.
In 1999, amendments to California law established a statewide registry of
private professional guardians, providing courts information about
prospective guardians' experience and a record of complaints and cases in
which they have had a guardianship appointment terminated for cause. (The
names of people on the registry are available to the public.) Florida also
maintains a statewide registry of most professional guardians, but
registration is not required of nonprofessional guardians.10 New York also
maintains a list of private professional fiduciaries, including guardians.
However, most of the courts responding to our survey in each state
indicated that less than half of the guardians they appointed were on the
state registry. Many of the guardians appointed are family members or
friends of the incapacitated elderly person.
10Professional guardians in Florida are those who receive compensation for
serving more than two incapacitated people who are not family members.
Nonprofessional guardians and guardians who are trust companies, state or
national banks, federal savings and loans associations, neither state, nor
independent colleges or universities are required to register.
Courts Recognized as Exemplary Focus on Training and Monitoring
Most courts surveyed said they did not have sufficient funds for
guardianship oversight.11 Often the courts handling guardianship matters
handle several kinds of cases. In each state, one-fifth or fewer of the
judges who hear guardianship cases in the responding courts spend a
majority of their time on them. Judges who spend little of their time on
guardianship cases tend to focus on each case as it comes up on their
calendar and find it difficult to devote the time and resources needed to
develop an effective guardianship program, according to some officials at
courts recognized as exemplary, but others disagreed saying that general
jurisdiction courts can also provide good oversight of guardians. In
Florida, about one-fifth of the judges in courts responding to our survey
spend the majority of their time on guardianship cases. While in
California and New York 17 percent and 12 percent of judges, respectively,
spend a majority of their time on these cases.
Each of the four courts recognized as exemplary went well beyond minimum
state requirements for guardianship training and oversight. Each court
provides training of guardians, even though training is only required in
one of the state's statutes. (See table 3.) The courts also actively
utilize computerized case management, court visitor programs, in-depth
review of annual reports, or investigations by court employees to oversee
guardianship cases. Two court officials told us that specialization allows
courts to focus on issues specific to guardianships and try new strategies
to improve the court's oversight of guardians.
11In a December 2003 opinion, the Florida Supreme Court called for
additional state judges, including 6 in Broward County, citing in part the
growing number of guardianship and probate cases due to Florida's growing
elderly population.
Table 3: Characteristics of Courts Recognized as Exemplary Broward County,
Rockingham County, San Francisco County, Tarrant County, Tex. Fla. N.H.
Calif.
Probate Court #2
Type of court Probate Probate Probate Department Probate
court court of the court
Superior Court
5,000 to 679b 978d
Number of people under 6,000a 1,350c
guardianship
About half More than About 299e
People under guardianship half three-quarters
who are elderly
Source: Court officials and documents.
aThe court does not keep count of the number of individuals under
guardianship as this is done by the Clerk of Court in Florida as an
independent constitutional officer. Court officials estimate, based upon
the Clerk of Court reports, that there are between 5,000 and 6,000 open
guardianship cases for adults and children.
bAs of December 31, 2003. Number includes adult cases only (minor
guardianships tracked separately).
cIncludes adult cases only (minor cases are called guardianships and are
tracked separately).
dAs of June 2004, including guardianships of adults and children.
eAs of June 2004.
Courts Recognized as Exemplary Provide Training and Sources of Information
Resources for Guardians
The courts recognized as exemplary provide training and/or information
resources for guardians. (See table 4.) Of the 4 states in which the
courts recognized as exemplary are located, only Florida requires
guardians to receive training, but Broward County provides training beyond
what is required in state law for nonprofessional guardians and provides
supplemental reference materials, such as a software program for preparing
guardianship reports.12 The courts in San Francisco and Tarrant County,
Texas, also provide independently developed training for guardians. For
example, as of January 2004, the San Francisco court required professional
and nonprofessional guardians alike to complete formal classroom
training.13 Working in partnership with a group of
12Parents who are appointed guardians of the property of their minor
children are subject to different requirements. Each person appointed by
the court to be the guardian of the property of his or her minor child
must receive a minimum of 4 hours of instruction and training that covers
the guardian's duties, preparation of reports, and use of guardianship
assets
13In California a private professional guardian (conservator) is generally
"a person or entity appointed as conservator of the person or estate, or
both, of two or more conservatees at the same time who are not related to
the conservator by blood or marriage, except a bank or other entity
authorized to conduct the business of a trust company, or any public
officer or public agency including the public guardian, public
conservator, or other agency of the State of California."
professional guardians, the court developed a required half-day training
course that nonprofessional guardians must complete within 6 months of
their appointment.
Table 4: Training and Information Resources for Guardians in the Four Courts
Training requirements in state law Court procedures exceeding state law
Broward County, o Nonprofessional: 8 hours (4 hours parent of o
Requires 12-hour course for nonprofessional guardians and a Fla.
minor child.)
o Professional: 40 hours, plus 16 continuing education hours every 2
years.
o Courses must be certified by state.
48-hour course for professional guardians.
o Handbook, required forms, required software for preparing guardianship
reports, court procedures, and answers to
a
frequently asked questions available on Web site.
Rockingham o None specified o Provides information packet and
checklist.
County, N.H. o Offers informal information sessions
with judge.
o Provides video explaining guardianship.
o Forms, information packet, and checklist
available on Web
site.
San Francisco o Required to provide handbook and resource o
Nonprofessionals: must complete up to 6 hours of court-
County, Calif. supplement book for local resources. supervised training.
Those appointed guardian of person must complete a 3-hour course and those
appointed guardian of estate must complete another 3-hour course.
o Professionals: complete certificate program at university or
demonstrate equivalent experience.
o Guardians are required to watch video.
Tarrant County, o None specified. o Court staff provides 20-30 minute
training and handbook.
Tex. o Training also available at local organization offering
guardianship services.
Source: Court officials and documents.
aThe court requires that guardians use this software to prepare initial
inventories, initial plans, annual plans, annual accountings, and
simplified accounting reports.
Courts Recognized as Exemplary Actively Oversee Guardianships
Each of the exemplary courts uses at least one means to actively oversee
guardianships, and while each will penalize guardians who fail to fulfill
their responsibilities, two courts dedicate extra resources to enforcement
activities. These two, Rockingham County and Tarrant County, oversee
guardianship cases through computerized case management systems. The
system in Rockingham County automatically notifies court staff when
reports are due for each guardianship case. For example, when a
guardianship of the estate is established, the system prints a notice to
the guardian that an inventory of the incapacitated person's assets must
be submitted to the court within 90 days. If the court has not received
the inventory, the system notifies court staff that an inventory default
notice is needed. This system also tracks the number of new guardianship
cases and the total number of active cases. Similarly, Tarrant County
enters
information about each new guardianship case into a database. Each month
the court generates a list of annual reports that are due and mails the
guardians the required report form. The court also enters the date the
report is received into the database.
Two of the courts have developed procedures for in-depth review of
guardians' reports. In Florida, the state statute requires that the clerk
of the court review each guardianship report to ensure that it contains
the appropriate information. Broward County has implemented a three-tiered
sampling system for reviewing the reports from the substantial caseload of
approximately 5,000 guardianships. All reports are subject to the first
level of review, which is conducted by the Audit Division of the Clerk of
the Court's office. A further sample of reports is selected, and the Audit
Division conducts a more intensive second level review. At the third level
of review, a further sample of reports is selected, and the audit division
conducts detailed in-house and field audits of supporting documentation to
verify the information in the reports. If these reviews indicate any
irregularities, the Audit Division sends a memorandum to the judge to
review the report and the auditor's findings. Tarrant County also employs
an auditor who is responsible for monitoring guardianships of the estate.
The auditor uses a database to track when guardians' reports are due.
Twice a month, the auditor checks this database to ensure that no reports
are overdue or overlooked.
As shown in table 5, each court recognized as exemplary uses a visitor
program to support guardianship oversight. Tarrant County is required by
state law to have court visitors monitor the status of people under
guardianship, so the court provides visitation internships to social work
students who work as court visitors.14 A licensed Master Social Worker on
the court staff acts as program manager and trains and supervises the
interns. The students receive course credit, and the program is of little
cost to the court. There are typically 4 or 5 interns making an average of
60-70 visits each month. The visitors submit a report of the visit to the
program manager for review, and the judge reviews these reports to guide
his or her decision on whether to continue the guardianship for an
additional year.
14Volunteers also conduct some court visits. The county has a volunteer
coordinator who assists in finding volunteers who are interested in doing
court visits. The court asks volunteers to make a 1-year commitment.
Volunteers attend the 4-hour orientation and training.
Rockingham County recruits volunteers from AARP to serve as either
visitors or researchers. Researchers prepare files for the court with
contact information, case background, and the last annual guardian's
report. The visitors then contact the guardian and arrange to visit the
incapacitated person. They assess the ward's living situation, finances,
health, and social activities, and recommend follow-up actions to the
court. A court employee serves as the volunteer coordinator. According to
the volunteer coordinator in Rockingham County, costs are minimal because
volunteers use court telephones, and the state provides supplies.
According to the court, the detailed, first-hand information provided
about the incapacitated person's environment and condition helps the court
make better decisions when the case is reviewed.
Table 5: Oversight Procedures in the Four Courts
Requirements in state law Court procedures exceeding state laws
Broward County, Fla.
Monitoring:
o Court may require background investigation of nonprofessionals.
o Court must require initial background investigation of professionals
and reinvestigate every 2 years.
o Clerk's office is required to audit guardian reports.
o Registration of professional guardians.
o Bond required for all.
Enforcement:
o Court may employ court monitors.
o Show cause hearing, etc., for delinquent reports.
o Background investigations of all guardians required.
o Background investigations required annually.
o 3-tiered report review system.
o Electronic reporting software.
o The Office of the Public Guardian-a publicly funded agency that serves
as a guardian, which is one of only a handful in the state.
o Full-time court monitor on staff and part-time contractors to
investigate abuse.
Rockingham Monitoring: o Volunteer Court Visitor program. County, N.H.
o Bond required for all guardians. o Follow-up on court visitor
recommendations.
o Criminal background check required for guardians of the person.
Enforcement:
o Court may issue show cause order, fine guardian, arrest guardian, or
terminate guardianship for failure to file reports.
San Francisco County, Calif.
Monitoring:
o Court investigators visit incapacitated people 1st year then every
other year.
o Status reports required for guardians of estate who are also guardians
of person.
o Statewide registration system for professionals.
o Full bond on all liquid assets required for all guardians.
Enforcement:
o Punish or remove guardian, suspend powers, appoint legal counsel, or
granting a 60-day extension.
o General Plan required for all guardianships.
o Status report required for all guardianships of person after first year
then every other year even if no guardianship of estate exists.
o Examiners review accountings.
o Yearlong study on guardianship data.
o More frequent investigations on troubled cases.
o Investigations on all petitions for termination of guardianship.
Tarrant County, Tex.
Monitoring:
o Court visitor program.
o Annual renewal of guardianship letters.
o Judge considers and approves annual accounts.
o Criminal background check for professionals required.
o Bond required for all guardians. Enforcement:
o Show cause hearing, fine, or removal if necessary.
o Court investigator investigates complaints.
o Authority to sentence guardians to jail for misconduct.
o Court visitors are social work students.
o Database system to track open cases.
o Auditor reviews annual accounts.
o Program Manager follows up on concerns in guardian and court visitor
reports before judge's review.
o Criminal background checks for nonprofessional guardians in
court-initiated guardianship.
Source: Court officials and documents.
State Courts and Federal Representative Payee Programs Serve Many of the Same
Incapacitated Elderly People, but Collaborate Little in Oversight Efforts
When guardians fail to fulfill their responsibilities, the courts have
legal authority to penalize guardians, and two of the courts recognized as
exemplary have staff dedicated to investigating these types of cases.
Broward County employs court monitors to investigate abuse allegations
involving guardians, or problems discovered due to annual background
checks, report review, or other tips. A study of statewide guardianship
monitoring practices found that Broward County conducts about 400 field
investigations a year, some of which have resulted in referrals to the
state attorney for prosecution.
Federal agencies and state courts' representative payee programs
collaborate little to protect incapacitated people and prevent misuse of
federal benefits. Although overlap is known to occur among the
incapacitated populations they serve, the extent of this overlap is not
known. Some state courts and federal agencies share certain information on
a case-by-case basis. However, the absence of a systematic means for
compiling and exchanging pertinent information may leave many
incapacitated people at risk and result in the misuse of benefits and
increased federal expense. State courts and federal agencies lack
consistent and sustained compilations of data needed to assess options for
improving oversight of guardians and representative payees.
Beneficiary Populations Overlap, but Coordination Is on a Case-by-Case Basis
The incapacitated populations served by state courts and federal agencies
overlap to some extent. Because we focused on incapacitated elderly
people, we did not assess overlaps between agencies' general beneficiary
populations. (See table 6.) An estimated 95 percent of all people 65 and
older are SSA recipients, and elderly recipients of OPM or VA benefits
often also receive SSA payments. An estimated 96 percent of VA
beneficiaries aged 65 and older are also SSA recipients and about 9
percent are OPM beneficiaries. Also, an estimated 82 percent of OPM
elderly beneficiaries are also SSA beneficiaries. While there are no data
on the number of beneficiaries who are incapacitated in each category, it
is likely that a number of incapacitated people are beneficiaries from
more than one federal agency, and a number could also have court-appointed
guardians.
Table 6: Many Elderly People Receive Benefits from More than One Federal Agency
Estimated number of Agencies providing benefitsa beneficiaries aged 65 or
oldera
SSA and VA
1,164,000b
SSA and OPM 1,191,000
VA and OPM 109,000
SSA, VA, and OPM 100,000
Source: Census Bureau analysis of Survey of Income and Program
Participation (SIPP) Data, 2001, Wave 6 survey results.
aEach estimate includes beneficiaries listed in other rows. For example,
about 100,000 of the estimated 1,164,000 people aged 65 or older who were
beneficiaries of both SSA and VA were also OPM beneficiaries.
bThe 90 percent confidence interval for this estimate is from 1.0 to 1.3
million elderly people.
Like many courts that oversee guardianship programs, federal agencies
collect certain information from representative payees.15 SSA annually
sends each representative payee (whether a court-appointed guardian or
not) a two-page report form asking for certain information--for example,
whether the representative payee was convicted of a felony, whether the
beneficiary continued to live in the same circumstances, how much of the
benefit payments were spent on the beneficiary's behalf, how much was
saved, and in what kind of account the funds are held.16 Similarly, OPM
biennially sends its representative payees a brief survey asking for
similar information, though those who are court-appointed guardians are
not required to complete the survey. OPM leaves it to the courts to
monitor these payees. VA also requires its representative payees to submit
a twopage accounting report, but asks payees who are court-appointed
guardians to submit the same accountings that they submit to the court.
Each agency sends follow-up mailings, and SSA and VA visit payees as
needed in cases where payees fail to submit a report. In addition, VA
sends field examiners to visit each incapacitated beneficiary. Agency
officials indicated that these efforts often help identify cases in which
beneficiaries or representative payees have moved or cases where a payee
may need to be replaced for a variety of reasons. For example, they may no
longer be living close enough to the beneficiary or they themselves have
become
15Each of the three agencies has its own criteria and process for
identifying beneficiaries in need of a representative payee and though the
three agencies use terms such as "incompetence," we use the term
"incapacitated."
16State mental hospitals that are representative payees are subject to
different accounting requirements and are subject to on-site reviews by
SSA staff.
unable to handle the benefit payments. Typically, however, cases of abuse
come to the agencies' attention by way of tips from individuals who know
of the beneficiary rather than from report and survey follow-up efforts.
Some state courts and federal agencies share certain information about
some beneficiaries on a case-by-case basis. Some state court officials
that we spoke with indicated that they have established a rapport with
staff in local offices of federal agencies, such as SSA and VA, and are
able to obtain information concerning incapacitated beneficiaries or their
representative payees. (See table 7.) For example, upon request, federal
agencies will sometimes provide them with information to allow the court
to determine all sources of the incapacitated person's income and whether
the guardian needs to coordinate with a payee. State courts may also offer
information to federal agencies. For example, some courts send occasional
notices of guardianship appointment to SSA, allowing SSA staff to identify
which of their beneficiaries is incapacitated and determine if the
guardian can be designated as a representative payee.
While coordination is often case-by-case, some takes place more
systematically and is based on previously established agreements. For
example, about one-third of the states have adopted the Uniform Veterans'
Guardianship Act that requires state courts to notify VA when they appoint
a guardian for a veteran. According to this act, VA must receive copies of
court orders and accountings related to the veteran's case. The act also
gives VA the right to appear in court during guardianship proceedings
involving a veteran.
Federal agencies may also establish agreements with one another to
exchange information. For example, SSA allows a limited number of VA
service representatives nationwide to electronically access some SSA
information about veterans' SSA benefits. This SSA data system includes
the amount of SSA benefits veterans receive, whether SSA has identified
them as incapacitated, and the identity of a representative payee, if one
has been designated. VA officials regularly look at SSA's information
before conducting a field examination to help determine incapacity and
choose a fiduciary, according to a VA official responsible for managing
the agency's fiduciary program. VA is not, however, notified when SSA
changes a beneficiary's representative payee. Many VA representative payee
program staff that do not currently have access to the database see
it as a useful tool and have expressed a desire to be able to use it in
order to more efficiently assess beneficiaries' needs.17
Lack of Systematic Coordination Weakens Oversight of Incapacitated People
The lack of systematic coordination weakens the oversight of both elderly
and non-elderly incapacitated people and may leave incapacitated people at
risk of not being assigned a representative payee or guardian despite
having been identified either by a state or federal entity as a person who
needs one. For example, if a federal agency has identified one of its
beneficiaries as incapacitated and assigns a representative payee, the
agency does not systematically notify the courts or other agencies. (See
table 7.) The other agencies making payments to the same person may not
learn that they may need to assign a representative payee to handle their
benefit payments to the person. Such notification could also be useful to
state courts in assessing the need for a guardian. This lack of
coordination could leave the incapacitated person who needs a
representative payee or guardian without one.
17Without the information on SSA benefits being provided to veterans, VA
staff would have to find benefit and income information through other
means, and they would have no way to verify the information. There is a
potential for fraud, since a beneficiary could claim to not receive Social
Security benefits, when in fact the person does receive a benefit and this
may affect their eligibility for VA benefits. In addition, without
information from SSA that may help indicate a veteran's total income, VA
may recommend an inappropriately low spending allowance for the
incapacitated person.
Table 7: Representative Payee Programs' Gathering and Exchange of
Information
Information gathered or exchanged SSA OPM VA
Ask whether incapacitated beneficiary has a court-appointed guardian? Yes
Yes Yes
a
Compile names of guardians not designated as agency's payee? No Not
applicable No
Give other agencies/courts access to database with name of Yes, VA access
only No No representative payee?
Systematically notify other agencies/courts of assignment of a No No Not
other representative payee? agencies, courts
b
in some cases
Systematically notify other agencies/courts of the replacement of a No No
Not other representative payee? agencies, courts
b
in some cases
Source: GAO interviews with SSA, OPM, and VA officials.
aOPM's policy is to designate the guardian as the representative payee.
bA VA official indicated that VA typically informs the court by letter if
it selects a new or successor representative payee other than one who was
previously appointed by the court.
Insufficient interagency coordination may also leave incapacitated elderly
people more vulnerable to abuse or neglect. For example, when an agency
identifies a representative payee who is abusing or neglecting an
incapacitated person, it does not automatically notify the state court or
other federal agencies that have assigned a guardian or representative
payee. Without such a notification, the court or other federal agency may
be unaware of the need to replace an abusive or negligent guardian or
representative payee.
If agencies and courts do not communicate with each other concerning
incapacitated beneficiaries, they may unknowingly assign different people
as representative payees or guardians with overlapping responsibilities.
However, in some cases, agencies and courts intentionally select different
people or organizations as representative payee or guardian. Although most
Old Age, Survivor, and Disability Insurance beneficiaries with both a
guardian and SSA-designated representative payee, have the same person
serving in both roles, for an estimated 19 percent of these beneficiaries
the guardian is not their representative payee.18 Some guardians choose
not to
18SSA estimated that as of December 2002, 250,000 Old Age, Survivor, and
Disability Insurance beneficiaries had both an SSA-designated
representative payee and a courtappointed guardian. For about 48,000 of
these beneficiaries the guardian was not the designated representative
payee.
be the representative payee, so SSA designates someone else. (See fig. 3.)
Sometimes VA designates a nursing home as a representative payee, even
though a court has appointed a family member or other person to be the
incapacitated resident's guardian. The guardian and the nursing home may
get into conflict over the use of the incapacitated person's benefit
payments. Additional coordination among federal agencies and courts and
cooperation among guardians and representative payees may be necessary to
avoid conflicts and better protect the incapacitated person.
Guardian who is a representative payee Incapacitated Incapacitated
Source: Interviews with court officials and federal officials responsible
for for SSA, VA, and OPM representative payee programs.
Federal officials have recognized the need for better exchange of
information regarding incapacitated beneficiaries. In response to
provisions in the Omnibus Budget Reconciliation Act of 1990, SSA and VA
studied the feasibility of collaborating in serving veterans who were also
SSA beneficiaries.19 In 1993, several agencies participated in a
discussion group on representative payee programs. Two of the agencies-SSA
and VA-signed an agreement calling for each agency to notify the other
when it had information that could be helpful to the other agency's
oversight of its representative payee.20 However, according to VA and SSA
officials, efforts to implement the agreement failed due to changes in
management personnel, concerns about costs, and issues concerning
nondisclosure of confidential information.
Not only is it likely that the lack of coordination limits the protection
of incapacitated people and their federal benefits, it may also result in
increased federal expenditures. The recently enacted Social Security
Protection Act of 2004 requires SSA to repay the benefits in certain cases
of misuse.21 For example, if a representative payee that is an
organization, or an individual serving 15 or more beneficiaries misuses
the benefit payments, SSA will have to reissue the misused benefits to the
beneficiaries or to an alternate representative payee, resulting in
increased federal expenditures. Before the passage of this act, SSA was
only required to replace benefits if SSA was negligent in its oversight of
a representative payee. Annually, SSA has found fewer than 1,000 cases of
misuse, and only in a small percentage of those cases was SSA found to be
negligent. However, according to an SSA official, the new provisions may
mean that more benefits will have to be reissued.
19These and other federal agencies currently collaborate in the exchange
of data on beneficiaries for other purposes. For example, through SSA's
Death Master File federal and state agencies, including SSA, OPM, and VA,
periodically match their beneficiary lists with lists of people who have
died. This cooperative effort helps agencies ensure that they do not
continue to send payments to people who are no longer eligible.
20Memorandum of Understanding between the Social Security Administration
and the Department of Veterans Affairs, signed by Acting Commissioner,
SSA, and Undersecretary for Benefits, October 13, 1993.
21Pub. L. No. 108-203 S:101, March 2, 2004.
Statistical Data to Analyze Options for Improving Oversight Not Available
Certain data, such as the number of active guardianships and incidence of
abuse, could help courts and agencies determine the effectiveness of
efforts to protect incapacitated people but are not currently available.
The courts we surveyed generally do not compile aggregate data such as the
number of incapacitated people, or elderly incapacitated people, with
guardians. Often the only records concerning guardianship appointments
aside from a calendar of upcoming hearings and due dates for required
reports are in individual paper files. Some states, however, are making
efforts to compile statewide data on guardianships. In Vermont, for
example, the Supreme Court compiles reports from each court on the number
of open guardianship cases, but without any information on the age of the
incapacitated people. In New York, the state court's Guardian and
Fiduciary Services is working on the development of a statewide database
on guardians, fiduciaries, and the people they were appointed to serve.
The federal agencies that we examined, SSA, VA, and OPM, do more to
compile data on representative payees than most courts responding to our
3-state survey do for incapacitated people with guardians. All three of
the federal agencies that we examined have databases that keep count of
the different types of representative payees for incapacitated people.
Neither SSA nor VA, however, consistently compiles information showing how
many beneficiaries with representative payees have a court-appointed
guardian who is not the representative payee.22
To keep these databases current, all three agencies require most of their
representative payees to submit periodic reports. SSA, VA, and OPM compile
and maintain basic information, such as contact information, about the
representative payees they designate. They also ask whether an
incapacitated beneficiary has a court-appointed guardian before
designating a representative payee. They do not, however, compile and
maintain more detailed information that could contribute to more effective
oversight of representative payees. For example, none of these agencies
consistently records information about a beneficiary's court-appointed
guardian in its computerized records system or updates the information
unless the agency also designates the court-appointed guardian as its
beneficiary's representative payee. Although SSA compiles some information
about the reasons it replaces representative payees, such as the
assignment of a more suitable payee, misuse of benefits, or fraud, for
22OPM's policy is to designate the guardian as the representative payee.
example-OPM and VA do not. This information might be useful in making
future assignments.
Sufficient data are not available to determine the incidence of abuse of
incapacitated people by guardians or representative payees, nor the extent
to which guardians and representative payees are protecting incapacitated
people from abuse. Current efforts to compile aggregate national data on
elder abuse do not identify cases when a guardian or representative payee
has been assigned to the victim of abuse, or whether a guardian or
representative payee commits the abuse. States compile statistics on
incidence of abuse and neglect, including information on the age of
victims.23 National associations collect these statistics from Adult
Protective Service agencies and Area Agencies on Aging. Generally, states
track types of abuse and some of the relationships between perpetrators
and victims, but they do not track instances where the victim had been
assigned a guardian or representative payee or had granted a power of
attorney to someone. As a result, federal agencies lack national data
concerning the incidence of elder abuse by guardians and representative
payees or the incidence of abuse with and without the assignment of a
guardian or representative payee. Similarly, national crime statistics,
such as crime victimization surveys, identify various relationships
between victims and perpetrators, and the age of victims, but fail to
identify cases involving guardians or representative payees. SSA tracks
the number of cases in which representative payees are found to have
misused benefits- fewer than a 1,000 cases each year for beneficiaries of
all ages. SSA officials agreed, however, that since SSA largely relies on
tips from third parties to discover cases of misuse, their records of
misuse might be incomplete.
Conclusions Although state and local courts have primary responsibility
for protecting incapacitated people, including the elderly, by appointing
and overseeing guardians, federal agencies also have responsibilities to
help protect many of the same incapacitated people through representative
payee programs. Yet, courts and federal agencies collaborate little in the
protection of incapacitated elderly people and the protection of federal
benefit payments from misuse. Court and agency efforts to improve
protection of the incapacitated is limited by their failure to
systematically compile and exchange data-by, for example, promptly
notifying each other when an
2342 U.S.C. S:3058i.
incapacitated person is identified or a representative payee or guardian
is appointed or needs to be replaced, due to their failure to fulfill
their responsibilities, or for other reasons. However, the extent to which
the courts and agencies leave elderly incapacitated people at risk is
unknown. Neither the states nor the federal government compile data
concerning the incidence of abuse of people assigned a guardian or
representative payee or even the number of elderly people with guardians.
Without better statistical data concerning the size of the incapacitated
population or how effectively it is being served, it will be difficult to
determine precisely what kinds of efforts may be appropriate to better
protect incapacitated elderly people from exploitation, abuse, and
neglect.
Improvements in oversight of guardians and representative payees depend in
part on additional efforts by states, state and local courts, federal
agencies, state area agencies on aging, and HHS. Although the focus of our
review was elderly incapacitated people, state guardianship and federal
representative payee programs also serve other incapacitated adults.
Improvements could be of benefit to all incapacitated adults, particularly
if they are designed with both the elderly and non-elderly in mind.
However, certain actions that would improve oversight are not currently
being undertaken. For example, the various entities responsible for
oversight do not collaborate to compile, on a continuing basis, consistent
national data concerning guardianships and representative payees. Without
such statistical data, the extent of preventable abuse and neglect of
incapacitated elderly people is unknown. Finally, the states have done
little to collaborate on interstate recognition and transfer of
guardianship appointments. Few states have adopted procedures for
accepting transfer of guardianship from another state or recognizing some
or all of the powers of a guardian appointed in another state. This can be
a problem when an incapacitated elderly person needs to move to another
state or the guardian needs to conduct business in another state on his or
her behalf. The need to establish a new guardianship in another state
because of these gaps in states' law can make it difficult for guardians
and the courts that supervise them to ensure that they fulfill their
responsibilities.
The prospect of increasing numbers of incapacitated elderly people in the
year's ahead signals the need to reassess the way in which state and local
courts and federal agencies work together in efforts to protect
incapacitated elderly people.
Recommendations To increase the ability of representative payee programs
to protect federal benefit payments from misuse, SSA should convene an
interagency study
group that includes representatives from HHS, federal agencies with
representative payee programs, including VA and OPM, and state courts that
wish to participate in order to study the costs and benefits of options
for improving interagency cooperation and federal-state cooperation in the
protection of incapacitated elderly and non-elderly people. Options may
include:
o prompt and systematic sharing among federal agencies' representative
payee programs of information such as the identity of individuals who are
incapacitated, the identity of those individuals' designated guardians and
representative payees, the identity of guardians and representative payees
who fail to fulfill their duties, and the assignment of successor
guardians and successor representative payees; and
o prompt and systematic sharing of similar information among federal
agencies and courts responsible for guardianships that choose to
participate.
Information-sharing initiatives must be designed in a manner that is
costeffective, respectful of privacy rights, and consistent with federal
nondisclosure requirements concerning confidential information.
To facilitate state efforts to improve oversight of guardianships and to
aid guardians in the fulfillment of their responsibilities, the Department
of Health and Human Services should work with national organizations
involved in guardianship programs, such as the those represented on the
National Guardianship Network, to provide support and leadership to the
states for cost-effective pilot and demonstration projects to:
o develop cost-effective approaches for compiling, on a continuing basis,
consistent national data concerning guardianships to aid in the management
of programs for protecting incapacitated adults, such as the age of the
incapacitated person, the type of guardian appointed, etc;
o study options for compiling data from federal agencies and state
agencies, such as Adult Protective Services agencies, concerning the
incidence of elder abuse in cases in which the victim had granted someone
the durable power of attorney or had been assigned a fiduciary, such as a
guardian or representative payee, and in cases in which the victim did not
have a fiduciary; and
o review state policies and procedures concerning interstate transfer and
recognition of guardianship appointments to facilitate efficient and
cost-effective solutions for interstate jurisdictional issues.
Agency Comments
We provided a draft of this report to SSA, OPM, VA, and HHS and received
written comments on the draft from all four. See appendixes IV, V, VI, and
VII for their responses.
SSA disagreed with our recommendation concerning an interagency study
group. It views the study we recommend as something beyond its purview.
Although SSA shares concern about incapacitated people's general welfare,
it stated that its responsibility focuses on ensuring that any SSA
benefits incapacitated people receive are used for their maintenance and
welfare. SSA stated that systematic sharing of information among federal
agencies and state courts would be extremely difficult and a study group
focusing on such sharing would not be within SSA's purview. SSA also
commented that efforts to coordinate with state courts must meet Privacy
Act requirements, and in that regard they noted that there is currently no
statement of routine use allowing SSA to share representative payee
information with state courts. Because state courts, SSA, and other
federal agencies have such different policies regarding representative
payees and guardians, SSA believes that it is constrained by the Privacy
Act in releasing information.
We believe that the systematic exchange of data could help SSA better
ensure that SSA benefits are used for incapacitated people's maintenance
and welfare. The interagency study group should be able to develop
policies allowing for the sharing of information consistent with the
Privacy Act and other applicable nondisclosure requirements. We believe
that an interagency study group could identify carefully specified kinds
of information that under specified circumstances could be shared among
limited numbers of federal and state court officials with jurisdiction
over guardianships in a manner that is consistent with the Privacy Act and
other applicable nondisclosure requirements. SSA and the other federal
agencies involved have the authority to develop statements of routine use
to provide for such exchange of information. They currently have such
agreements in place to share data with other federal agencies, such as
SSA's sharing of information concerning its representative payees with a
limited number of VA staff. Although exchange of data among federal
agencies with representative payee programs may be easier to establish
than exchange between federal agencies and state courts, further study is
warranted to assess the feasibility of such exchange and the extent to
which it could enable courts and federal agencies to better protect
incapacitated elderly people.
VA and OPM agreed with our conclusions pertaining to their agencies,
indicating that they look forward to participating in the study group we
are recommending. VA noted wide variations in state guardianship laws and
procedures, the need for federal agencies and state courts to share
information on cases of common interest, and the current lack of
systematic information sharing among federal agencies state agencies, and
state courts relating to the protection of elderly beneficiaries. OPM
suggested that we assert that it would be to the federal government's
benefit, either in terms of efficiency or savings, to create systems for
sharing information on guardians or representative payees. OPM also urged
that we add to the report statistics demonstrating the efficiency of
coordination with state courts. Although adding these would strengthen the
report, data necessary to do so are not currently available. Our findings
strongly suggest that savings and greater efficiency would result from
collaboration, but the extent to which this is the case will not be known
until agencies and state courts start collaborating in efforts to assess
overlaps in the populations of incapacitated people they serve, incidence
of abuse, and the costs and benefits of data exchange.
HHS agreed that guardians should be adequately trained and monitored, and
that governmental agencies and courts should coordinate their efforts and
share information concerning guardians and representative payees. HHS
plans to carry out our recommendation to study options for compiling data
from federal agencies and state agencies concerning the incidence of elder
abuse in cases in which the victim had granted someone the durable power
of attorney or had been assigned a fiduciary, such as a guardian or
representative payee. This year the National Center on Elder Abuse will
survey all state adult protective services agencies to determine the
incidence of elder abuse reports and the characteristics of victims and
perpetrators. The center plans to ask states to cite the number or
percentage of perpetrators of elder abuse who served as the victims'
powers of attorney, guardians, or representative payees. HHS also plans to
explore cost-effective pilot and demonstration projects to develop
approaches for compiling guardianship data and to facilitate solutions for
interstate jurisdictional issues. It also agreed to serve on an
interagency study group to develop options for improving interagency
cooperation and federal-state cooperation in the protection of
incapacitated elderly and non-elderly people.
As agreed with your office, unless you publicly announce its contents or
authorize its release sooner, we will not distribute it until 30 days from
the date of issuance. At that time, we will send copies of this report to
the Commissioner of Social Security, the Director of the Office of
Personnel
Management, the Secretary of Health and Human Services, and the Secretary
of Veterans Affairs. We will also make copies available to others on
request. In addition, the report will be available at no charge on GAO's
Web site at http://www.gao.gov/.
If you have any questions concerning this report, please contact Barbara
Bovbjerg or Alicia Puente Cackley at (202) 512-7215. See appendix VIII for
other contacts and staff acknowledgments.
Sincerely yours,
Barbara D. Bovbjerg Director, Education, Workforce, and Income Security
Issues
Appendix I: Scope and Methodology
Our review included a review of state laws on guardianship, the
development and administration of surveys of state courts in 3 states,
visits to 15 courts in 8 states, and interviews with federal officials at
the Social Security Administration (SSA), Department of Veterans Affairs
(VA), Office of Personnel Management (OPM), and the Department of Health
and Human Services (HHS). In addition, one member of the team completed a
2-day training program for professional guardians in Washington State and
two attended a conference of the National Guardianship Association. We
conducted our review between March 2003 and May 2004 in accord with
generally accepted government auditing standards.
To determine what state courts do to ensure that guardians fulfill their
responsibilities, we studied both states' laws concerning guardianship and
court practices, particularly those concerning court oversight of
guardians. Our review of states' laws relied in part on the compilations
prepared by the American Bar Association Commission on Law and Aging. To
review court practices we limited our scope to courts with jurisdiction
over guardianships for the elderly in the three states with the largest
elderly populations (residents aged 65 and older)-California, New York,
and Florida. Together these three states account for about one-quarter of
the nation's elderly population. We administered similar survey
instruments tailored to the courts in each of these states. We refined the
survey instruments based on pretest visits to court officials at three
counties in California, three counties in Florida, and two counties in New
York. We sent finalized survey instruments to California Superior Courts
in each of California's 58 counties, to circuit courts in each of
Florida's 67 counties, and to each of New York's 12 judicial districts. We
received usable survey responses from 42 California courts, 55 Florida
courts, and 9 of New York's judicial districts for response rates of 72
percent, 82 percent, and 75 percent, respectively. Several courts provided
responses to some items, but no responses to other items in the survey
instrument. For details on the numbers of responses to each item and a
compilation of responses by state, see appendix III. We reviewed courts'
survey responses for consistency, but did not independently review the
accuracy of the court officials' responses.
To determine what guardianship programs recognized as exemplary do to
ensure that guardians fulfill their responsibilities we visited 4 courts
to study their procedures. We selected the four courts by contacting
Appendix I: Scope and Methodology
members of the National Guardianship Network and asking them which courts
throughout the nation they regard as having exemplary practices.1 The four
courts we selected were each identified as exemplary by two or more
members of the network. We visited each of the courts and interviewed
judges, probate directors, monitoring staff, volunteers, legal staff, and
others. In two of the courts, we attended guardianship hearings. We
reviewed each of the court's documents concerning probate procedures
including state laws, rules of court, training materials, forms, and
written and Web site documents. We also examined examples of guardianship
case files.
To determine to what extent do state courts and federal agencies
coordinate their efforts to protect incapacitated elderly people, we
interviewed court officials in each of the four courts recognized as
exemplary and in several additional courts. We attended the National
Guardianship Association's conference including sessions concerning
guardianships and VA and guardianships and the Healthcare Insurance
Portability and Privacy Act of 1996.2 We met with a group of conference
attendees, including judges, probate lawyers, and guardians, to discuss
federal agencies' interactions with guardians and courts. We also reviewed
documents provided by court officials concerning specific cases in which
federal agencies were involved in guardianship cases. We also interviewed
officials at SSA, VA, OPM, and HHS and reviewed applicable regulations and
policy manuals and handbooks.
1The National Guardianship Network is a joint council representing the
National College of Probate Judges, National guardianship Association,
American Bar Association- Commission on Law and Aging, National Center for
State Courts, National Academy of Elder Law Attorneys, National
Guardianship Foundation, American Bar Association-Real Property Probate
and Trust Section, and American College of Trust and Estate Counsel.
2Pub. L. 104-191, August 21, 1996.
Appendix II: GAO Surveys of Courts in California, Florida, and New York
The following are surveys GAO mailed to the California Superior Court in
each of the 58 counties in California, the Florida Circuit Courts in each
of the 67 counties in Florida, and the 12 Judicial Districts in New York.
For summary results of the survey, see appendix III.
Page 38 GAO-04-655 Guardianships
Appendix II: GAO Surveys of Courts in California, Florida, and New York
Appendix II: GAO Surveys of Courts in California, Florida, and New York
Appendix II: GAO Surveys of Courts in California, Florida, and New York
Appendix II: GAO Surveys of Courts in California, Florida, and New York
Appendix II: GAO Surveys of Courts in California, Florida, and New York
Appendix II: GAO Surveys of Courts in California, Florida, and New York
Appendix II: GAO Surveys of Courts in California, Florida, and New York
Appendix II: GAO Surveys of Courts in California, Florida, and New York
Appendix II: GAO Surveys of Courts in California, Florida, and New York
Appendix II: GAO Surveys of Courts in California, Florida, and New York
Appendix II: GAO Surveys of Courts in California, Florida, and New York
Appendix II: GAO Surveys of Courts in California, Florida, and New York
Appendix II: GAO Surveys of Courts in California, Florida, and New York
Appendix II: GAO Surveys of Courts in California, Florida, and New York
Appendix II: GAO Surveys of Courts in California, Florida, and New York
Appendix II: GAO Surveys of Courts in California, Florida, and New York
Appendix II: GAO Surveys of Courts in California, Florida, and New York
Appendix II: GAO Surveys of Courts in California, Florida, and New York
Appendix II: GAO Surveys of Courts in California, Florida, and New York
Appendix II: GAO Surveys of Courts in California, Florida, and New York
Appendix II: GAO Surveys of Courts in California, Florida, and New York
Appendix II: GAO Surveys of Courts in California, Florida, and New York
Appendix II: GAO Surveys of Courts in California, Florida, and New York
Appendix II: GAO Surveys of Courts in California, Florida, and New York
Appendix III: Results from GAO Surveys of
Courts in California, Florida, and New York
Below are tabulations of survey responses received from 42 of the 58
superior courts in California, 55 of the 67 superior courts in Florida,
and 9 of the12 judicial districts in New York. In some cases, respondents
to the survey did not respond to particular items in the survey.
Court Policies and Procedures
Which of the following resources are available to guardians appointed by
your court?a (Check one for each resource.)
California Florida New York Yes No Yes No Yes No
A. Summary of statutory duties of guardians
315 18 30 6
B. List of resources and contacts for
2510 14 30 6
guardians (e.g., Area Agencies on Aging, county/state support agencies,
etc.)
C. Training classes 2 29 30 20 7
D. Training video 18 19 13 33 7
E. Guardian handbook or manual 40 1 17 29 6
F. Online reporting forms 4 24 5 39 3
G. Examples of model reports 8 24 10 33 7
H. Other (please specify) 2 5 2 5 1
aSurveys to courts in California use the term "conservators." In
California guardians are appointed to protect minors and conservators are
appointed to protect adults. For convenience, for the purposes of this
report, we use the term "guardian" rather than "conservator."
Appendix III: Results from GAO Surveys of Courts in California, Florida, and New
York
Does your court require formal training (e.g., classes, videos,
instructional meetings) for any of the following types of guardians?
(Check one for each row.)
Training required for
California Florida New York
All Some None All Some None All Some None
A. Guardians who are family 10 3 27 31 16 6 4 4
members or friends
B. Guardians who are attorneys 9 1 31 8 5 38 4 2
C. Guardians (not family members, friends or attorneys)
who are paid from public sources (e.g., social service
agencies, etc.) 6 3 31 28 9 11 3 0
D. Guardians (not family members, friends or attorneys)
who are paid from the income or assets of the
incapacitated person (e.g., non-attorneys on the state
registry) 9 52737 9 6 4 2
E. Others (please specify) 1 0 8 0 1 7 1 0
Appendix III: Results from GAO Surveys of Courts in California, Florida, and New
York
Does your court require guardians of the property to submit documentation
of the following items, either separately or as part of a report? (Check
one for each item.)
California Florida New York
Guardians Annual,
of the Required Required then Required Required Required Not
Not Not Required
for all for some bienniala for all for some for all
property required required for some required
A. Initial 38 3 1 53 2 0 9 0
inventory of
assets,
income, and
liabilities
B. Annual 13 11 3 15 50 5 0 9 0
financial
statements
or
accountings
C. More 0 9 30 0 15 39 0 2
frequent
than annual
financial
statements
or
accountings
D. Less 5 14 6 15 0 10 43 0 2
frequent
than annual
financial
statements
or
accountings
E. Written 5 9 26 18 1224 3 5
financial
plan
F. Written 9 12 18 25 7 21 8 1
report
and/or
petition
when plans
change
G. Other 3 1 6 0 03 0 00
(please
specify)
aCalifornia state law generally requires an accounting and report by the
end of the first year following the appointment and at 2-year intervals
(biennially) thereafter.
Appendix III: Results from GAO Surveys of Courts in California, Florida, and New
York
Does your court require guardians of the person to submit documentation of
the following items, either separately or as part of a report? (Check one
for each item.)
California Florida New York
Guardians Annual,
of the Required Required then Required Required Required Not
Not Not Required
for all for some bienniala for all for some for all
person required required for some required
A. Initial 31 3 8 0 51 2 2 9 0
description
of personal
status
B. Annual 9 9 18 3 46 6 2 7 2
personal
status
reports
C. More 1 8 29 0 0 10 44 0 4
frequent
than annual
personal
status
reports
D. Less 9 10 18 2 0 6 48 0 1
frequent
than annual
personal
status
reports
E. Written 7 8 23 1 44 6 5 7 1
plan for
personal
care
F. Written 9 12 19 0 31 10 13 9 0
report and/or
petition
when plans
change
G. Other 3 0 5 0 1 03 0 00
(please
specify)
aCalifornia state law generally requires an accounting and report by the
end of the first year following the appointment and at 2-year intervals
(biennially) thereafter.
Appendix III: Results from GAO Surveys of Courts in California, Florida,
and New York
Monitoring Guardianships
How sufficient is your court's funding for monitoring guardianships?
(Check one.)
California Florida New York
A. Much more than sufficient 0 0
B. More than sufficient 0 0
C. Sufficient 7 15
D. Less than sufficient 13 5
E. Much less than sufficient 9 5
F. No funds available for this purpose 10 28
Do courts in your county require that guardians of the property be bonded?
(Check one.)
California Florida New York
A. Yes, for all or almost all 26 15
B. Yes, for some 13 36
C. Not required for guardians of the property 3 4
Do courts in your county require background checks on guardians of the
property? (Check one.)
California Florida New York
A. Yes, for all or almost all 15 8
B. Yes, for some 10 31 1
C. Not required for guardians of the property 17 13 6
Appendix III: Results from GAO Surveys of Courts in California, Florida, and New
York
Do courts in your county require background checks on guardians of the
person? (Check one.)
California Florida New York
A. Yes, for all or almost all 17 7
B. Yes, for some 8 28
C. Not required for guardians of the person 17 17
Other than relying on reports by guardians, which, if any, of the
following strategies does your court use after the initial hearing to
assess the personal status of people who have guardians appointed by the
court? (Check one for each strategy.)
Court strategy All almost all the cases Most cases About half the cases Some
cases No cases
California
A. Personal visits by court official 32 3 0 1
B. Personal visits by persons outside 3 1 0 10
the court, other than the appointed
guardian
C. Periodic hearings on the 20 5 2 8 continued need for guardianship
D. Other (please specify) 1 0 0 1
Florida
A. Personal visits by court official 0 0 0 7
B. Personal visits by persons outside 1 0 1 6
the court, other than the appointed
guardian
C. Periodic hearings on the 0 4 1 14 continued need for guardianship
D. Other (please specify) 2 0 0 3 7
New York
A. Personal visits by court official 0 1 0 1 7
B. Personal visits by persons outside 1 0 0 3 5
the court, other than the appointed
guardian
C. Periodic hearings on the 0 1 1 5 2 continued need for guardianship
D. Other (please specify) 0 0 0 0 0
Appendix III: Results from GAO Surveys of Courts in California, Florida,
and New York
Who reviews financial and personal status reports submitted by guardians
appointed by your court? (Check one for each type of reviewer.)
All/almost About all the Most half the Some No Court strategy cases cases
cases cases cases
California
A. A judge 30 1 0 7
B. Court personnel other 25 2 0 1 than judges
C. Volunteers 1 0 0 2
D. Government agencies 0 0 0 5 other than the court
E. Other (please specify) 6 0 0 1
Florida
A. A judge 28 2 0 6
B. Court personnel other 47 0 0 0 than judges
C. Volunteers 0 0 0 1
D. Government agencies 4 0 0 6 other than the court
E. Other (please specify) 7 0 1 3
New York
A. A judge 5 0 0 1
B. Court personnel other 7 0 0 0 than judges
C. Court examiner or other 8 0 0 0
compensated person
appointed to review reportsa
D. Volunteers 0 0 0 0 7
E. Government agencies 1 0 0 2 6
other than the court
F. Other (please specify) 0 0 0 0 0
aThis item was included only in the surveys to New York judicial
districts.
Appendix III: Results from GAO Surveys of Courts in California, Florida,
and New York
What steps, if any, are taken to verify information in financial and
personal status reports? (Check one for each step.)
All or About almost all Most half the Some No reports reports reports
reports reports
California
A. Information in personal 22 1 0 5
status reports is verified.
B. Information in financial 16 3 0 11
reports is verified.
C. Supporting 24 2 0 8
documentation for financial
information must be
submitted (e.g.,
bank/brokerage
statements).
D. Other (please specify) 3 0 0 1
Florida
A. Information in personal 19 2 1 9
status reports is verified.
B. Information in financial 29 1 0 7
reports is verified.
C. Supporting 48 2 0 4
documentation for financial
information must be
submitted (e.g.,
bank/brokerage
statements).
D. Other (please specify) 5 0 0 0
New York
A. Information in personal 5 1 0 1
status reports is verified.
B. Information in financial 6 1 0 1
reports is verified.
C. Supporting 5 2 0 2 0
documentation for financial
information must be
submitted (e.g.,
bank/brokerage
statements).
D. Other (please specify) 0 0 0 0 0
Appendix III: Results from GAO Surveys of Courts in California, Florida,
and New York
Is your court required to document approval of financial and personal
status reports? (Check one.)
California Florida New York
A. Only required to document approval of 12 11 financial reports
B. Only required to document approval of personal status reports
0 0
C. Required to document approval of both
20 39
financial and personal status reports
D. No requirement for court to document 8 4 approval of reports
Does your court use a computer(s) to track when financial and/or personal
status reports are due and when they are filed? (Check one.)
California Florida New York
A. Yes, for financial reports only 4 2
B. Yes, for personal status reports only 2 0
C. Yes, for both financial and personal status 22 37 reports
D. No 13 15
About how many of the required guardianship reports for the elderly are
filed on time? (Check one.)
California Florida New York
A. All or almost all 5 4 0
B. Most 18 16 2
C. About half 6 15 2
D. Less than half 6 14 1
E. Few, if any 3 1 0
F. Do not know 4 5 4
Appendix III: Results from GAO Surveys of Courts in California, Florida,
and New York
Guardian Compensation
In the last 12 months, has your court approved any guardian compensation
that was based on a percentage of the value of an elderly incapacitated
person's estate? (Check one.)
California Florida New York
Yes 113
No 3048
If "Yes," what is the range of percentages typically approved?
California Florida New York Lowest Highest Lowest Highest Lowest Highest
0.75% 5% 0.5% 1.5% 0.03% 5%
In the last 12 months, has your court approved any guardian compensation
that was based on a percentage of an elderly incapacitated person's
income? (Check one.)
California Florida New York
Yes 42
No 3751
Appendix III: Results from GAO Surveys of Courts in California, Florida,
and New York
If "Yes," what is the range of percentages typically approved?
California Florida New York
Lowest Highest Lowest Highest Lowest Highest
0.9% 10% 0% 5% 1% 5%
In the last 12 months, has your court approved any guardian compensation
based on an hourly rate? (Check one.)
California Florida New York
Yes 31 35
No 1118
If "Yes," what is the range of hourly rates typically approved?
California Florida New York
Lowest Highest Lowest Highest Lowest Highest
$7 $250 $8 $85 $25 $400
Appendix III: Results from GAO Surveys of Courts in California, Florida,
and New York
How does your court handle petitions from guardians for compensation?
(Check one for each row.)
California Florida New York
All Some None All Some None All Some None
A. Court personnel review 27 5 8 26 6 19 6 1
petitions.
B. Judges review petitions. 34 7 0 46 1 2 7 2
C. Guardians are required to submit time and 24 12 5 40 6 4 6 3
expense records to support their compensation
petitions.
D. Petitions are approved by court personnel or 32 4 6 34 3 6 7 1
judge unless a problem surfaces.
E. Final approval is required by circuit or state 0 0 34 12 2 25 3 0
office.
F. Other (please specify) 0 1 7 1 0 5 1 0
Statistical Information
How many judges in your court hear guardianship petitions for the elderly?
(Enter number.)
California Florida New York
Minimum 1 1
Maximum 11 8
Mean 1.60 1.62 10.78
Median 1 1
Appendix III: Results from GAO Surveys of Courts in California, Florida,
and New York
Of the judges in your court who hear guardianship petitions for the
elderly, how many work more than half the time on guardianship matters?
(Enter number less than or equal to that given in Question 20.)
California Florida New York
Minimum 0 0
Maximum 1 2
Mean 0.34 0.42 1.44
Median 0 0
How frequently is the elderly respondent (aged 65 and over) to a
guardianship petition present at the appointment hearing? (Check one.)
California Florida New York
A. Always or almost always 3 4
B. In most cases 5 3
C. In about half the cases 8 6
D. In less than half the cases 16 12
E. In few, if any, cases 8 28
Does your court keep counts of the number of people, elderly and
nonelderly, who have guardians appointed by the court? (Check one.)
California Florida New York
Yes 13 12
No 2941 6
Appendix III: Results from GAO Surveys of Courts in California, Florida,
and New York
Currently, how many people, elderly and non-elderly, have active or
continuing guardians appointed by your court? (Please provide actual
numbers, if possible. If they are not available, check the box under
"Information is not available.")
California Florida New York
Minimum 103 2 1,131
Maximum 2,034 7,412 3,150
Mean 853 1,225 2,217
Median 833 590 2,370
Number of responses 9 11
Does your court keep counts of the number of people with active or
continuing guardians appointed by your court who are elderly (aged 65 and
over)? (Check one.)
California Florida New York
Yes 44
No 3750
If "Yes," currently, how many elderly have guardians?
California Florida New York
Minimum 0 2 1,165
Maximum 103 1,073 2,520
Mean 52 538 1,842
Median 52 538 1,842
Number of responses 2 2 2
Appendix III: Results from GAO Surveys of Courts in California, Florida,
and New York
Currently, about what percentage of the people with guardians appointed by
your court are elderly (aged 65 and over)? (Check one.)
California Florida New York
A. All or almost all 1 4
B. More than half 22 10
C. About half 0 6
D. Less than half 1 8
E. In few, if any, cases 1 2
F. Information is not available 17 20
In the last 12 months, about what percentage of petitions for guardianship of
elderly people resulted in the appointment of a guardian? (Check one.)
California Florida New York
A. All or almost all 28 43
B. More than half 8 3
C. About half 0 0
D. Less than half 0 0
E. Few, if any 0 0
F. Information is not available 6 9
Does your court keep counts of the types of guardians (e.g., family
members, attorneys, or other guardians who receive payment from either
public sources or the income and assets of the incapacitated person)
appointed for elderly persons?
California Florida New York
Yes 343 No 3950 6
Appendix III: Results from GAO Surveys of Courts in California, Florida, and New
York
How frequently does your court appoint each of the following types of
guardians for elderly persons? (Check one for each type.)
Less than All or Few, if any, half the About half Most almost all cases
cases the cases cases the cases
California
A. Guardians who are family members or friends 2 8 14 14
B. Guardians who are attorneys 33 3 0 1
C. Guardians, other than family members, friends, or attorneys,
who receive payment for services from public sources (e.g.,
social service agencies, etc.) 12 19 6 1
D. Guardians, other than family members, friends, or attorneys,
who receive payment for services from the income or assets of
the incapacitated person 14 21 3 0
E. Other (please specify) 4 3 1 1
Florida
A. Guardians who are family members or friends 0 3 10 20
B. Guardians who are attorneys 44 2 0 0
C. Guardians, other than family members, friends, or attorneys,
who receive payment for services from public sources (e.g.,
social service agencies, etc.) 35 7 2 1
D. Guardians, other than family members, friends, or attorneys,
who receive payment for services from the income or assets of
the incapacitated person 23 12 7 4
E. Other (please specify) 1 0 0 0
New York
A. Guardians who are family members or friends 0 1 1 5
B. Guardians who are attorneys 3 4 1 0
C. Guardians, other than family members, friends, or attorneys,
who receive payment for services from public sources (e.g.,
social service agencies, etc.) 3 4 0 0
D. Guardians, other than family members, friends, or attorneys,
who receive payment for services from the income or assets of
the incapacitated person 6 1 0 0 0
E. Other (please specify) 0 0 0 0 0
Appendix III: Results from GAO Surveys of Courts in California, Florida,
and New York
About what percentage of the guardians appointed by your court are on the
state registry? (Check one.)
California Florida New York
A. All or almost all 0 2
B. More than half 0 2
C. About half 1 2
D. Less than half 13 6
E. Few, if any 17 12
F. Information is not available 10 30
Enforcement
In the last 12 months, which actions has your court taken to enforce
requirements for guardians for the elderly? (Check one for each action.)
California Florida New York
Yes No Yes No Yes No
A. Asked guardians questions raised by 35 5 43 6 8
submitted reports
B. Sent follow-up letters to guardians when 25 14 44 6 8
reports are late, incomplete, or
inaccurate
C. Sent show cause order, summons, or court notice for delinquent reports
33 7 43 7 7
D. Investigated complaints about guardians 30 9 27 21 7
E. Held hearings on complaints from incapacitated persons, 32 8 35 15 8
family members, or
other parties
F. Other (please specify) 3 2 3 4 1
Appendix III: Results from GAO Surveys of Courts in California, Florida, and New
York
Over the last 3 years, about how often has your court imposed the
following penalties on guardians for the elderly for failure to fulfill
their responsibilities? (Check one estimate for each penalty.)
Never 1-5 times 6-10 times More than 10 Do not know
California
A. Terminated appointment 6 20 3 5
B. Reduced guardian's power over incapacitated person 11 15 1 3
C. Fined or surcharged guardian for filing required reports late 21 9 1 2
D. Surcharged bond for property mismanagement 16 11 3 3
E. Denied guardian's petition for a new appointment 14 15 1 1
F. Notified state registry of guardian's resignation or removal
for
cause 29 1 0 0
G. Letter of reprimand 31 1 0 0
H. Mandated additional training 33 1 0 0
I. Withheld or reduced compensation 9 11 4 9
J. Notified bar about attorneys who submit delinquent reports 32 0 0 0
K. Awarded damages for civil actions against a guardian 25 5 0 0
L. Issued contempt of court citation 15 7 4 8
M. Convicted a guardian of a crime against the incapacitated person 17 11
0 0
N. Other (please specify) 4 0 0 1
Florida
A. Terminated appointment 11 20 6 6 6
B. Reduced guardian's power over incapacitated person 20 13 3 2 10
C. Fined or surcharged guardian for filing required reports late 38 3 0 2
5
D. Surcharged bond for property mismanagement 32 9 3 0 4
E. Denied guardian's petition for a new appointment 26 13 0 2 7
F. Notified state registry of guardian's resignation or 40 0 0 0 8
removal for
cause
G. Letter of reprimand 29 5 0 4 9
H. Mandated additional training 26 8 2 3 8
I. Withheld or reduced compensation 17 12 2 10 7
J. Notified bar about attorneys who submit delinquent reports 33 6 0 1 8
K. Awarded damages for civil actions against a guardian 29 7 0 1 10
L. Issued contempt of court citation 18 11 1 11 8
M. Convicted a guardian of a crime against the incapacitated person 31 8 0
1 8
N. Other (please specify) 4 1 0 2 4
Appendix III: Results from GAO Surveys of Courts in California, Florida, and New
York
Never 1-5 times 6-10 times More than 10 Do not know
New York
A. Terminated appointment 0 4 0 2 3
B. Reduced guardian's power over incapacitated person 2 3 0 1
C. Fined or surcharged guardian for filing required reports late 2 3 1 0
D. Surcharged bond for property mismanagement 3 2 1 0
E. Denied guardian's petition for a new appointment 5 0 0 0
F. Notified state registry of guardian's resignation or removal 6 1 0 0
for
cause
G. Letter of reprimand 7 0 0 0
H. Mandated additional training 8 0 0 0
I. Withheld or reduced compensation 1 2 0 3
J. Notified bar about attorneys who submit delinquent reports 7 0 0 0
K. Awarded damages for civil actions against a guardian 7 0 0 0
L. Issued contempt of court citation 4 2 0 1
M. Convicted a guardian of a crime against the incapacitated person 6 1 0
0
N. Other (please specify) 1 0 0 0
Appendix IV: Comments from the Office of Personnel Management
Page 83 GAO-04-655 Guardianships
Appendix VI: Comments from the Department of Health and Human Services
Appendix VI: Comments from the Department of Health and Human Services
Appendix VI: Comments from the Department of Health and Human Services
Appendix VI: Comments from the Department of Health and Human Services
Appendix VII: Comments from the Social Security Administration
Appendix VII: Comments from the Social Security Administration
Appendix VII: Comments from the Social Security Administration
Appendix VIII: GAO Contacts and Staff Acknowledgments
GAO Contacts
Staff Acknowledgments
(130247)
Alicia Puente Cackley (202) 512-7022 Benjamin P. Pfeiffer (206) 287-4832
Carolyn M. Boyce, Nicole E. Gore, Jill M. Johnson, Corinna A. Nicolaou,
Daniel A. Schwimer, Derald Seid, and John E. Trubey also contributed to
this report.
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